PREWEEK-CIVIL-LAW-2018.pdf

UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 apply. Thus, the validity of the divorce will be determined based on the law of the country of which he is a citizen at the time the valid divorce is obtained (Rabuya, 2017).

PART I – GENERAL PRINCIPLES EFFECT AND APPLICATION OF LAWS Publication

b.

Is indispensable in every case, but the legislature may in ‘its discretion provide that the usual fifteen-day period shall be shortened or extended (Umali v. Estanislao, G.R. No. 104037, May 29, 1992; Tañada v. Tuvera, G.R. No. L-63915, December 29, 1986).

3.

XPNS: a.  Art. 16(2) NCC –  succession as to order of succession, amount of successional rights and intrinsic validity of the testamentary provisions - governed by national law. b. Lex loci voluntatis or lex loci intentionis   - contracts involving real property but do not deal with title or real rights over the property, the issue being the contractual rights and liabilities of parties - governed by the proper law of the contract. c. Loan - in contracts where real property is given as security by way of mortgage to secure a principle contract - loan is governed by the proper law of the contract while the mortgage is governed by the lex situs. d. Validity of the contract to transfer land - while the validity of the transfer of land must be determined by the lex situs, the validity of the contract to transfer is determined by the proper law of the contract.

Reason: publication in full satisfies the basic constitutional requirement of due process. Without such notice and publication, there would be no basis for the application of the maxim ignoratia legis non excusat  (Rabuya,  (Rabuya, 2017).

XPNs to the Publication Requirement: (O-R-L-I)

2. 3. 4.

Municipal Ordinances (governed by the Local Government Code); Rules and regulations which are internal in nature; Letters of Instruction issued by administrative supervisors on internal rules and guidelines; Interpretative regulations regulating only the personnel of administrative agency.

4.

XPNs to the XPNs: (D-E-P)  Administrative  Administrative publication: 1. 2. 3.

rules

and

regulations

that

require

The purpose of which is to implement or enforce existing laws pursuant to a valid Delegation; It diminishes Existing rights of certain individuals. Penal in nature

XPNs: Philippine law shall apply in the following cases even though performed abroad: a. b.

Application of laws Penal laws

XPNs: Philippine penal laws will not apply by virtue of:

d. 2.

Acts are executed before the diplomatic or consular officials of the Philippines. Prohibitory laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs (Art. 17).

Renvoi  - A procedure whereby a jural matter presented is referred by the conflict of laws rules of the forum to a foreign state, the conflict of laws rules of which in turn refers the matter back to the law of the forum (remission) or a third state (transmission).Thus, it is clear that renvoi can arise only from conlict rules and not from internal rules.

GR: Territoriality rule - Penal laws and laws of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory (Art. 14).

a. b. c.

Law governing extrinsic validity of contracts, wills and public instruments

GR: Lex loci celebrationis (Art. 17) –  forms and solemnities of contracts, wills and other public instruments shall be governed by the laws of the country in which they are executed.

Conflict of laws

1.

Real statutes – Laws on Property

GR: Lex Rei Sitae – Real property as well as personal property is subject to the law of the country where it is situated (Art. 16) (2001, 2002, 2004, 2007, 2009).

Must be in full  or it is no publication at all. (Umali v. Estanislao, G.R. No. 104037, May 29, 1992; Tañada v. Tuvera, G.R. No. L63915, December 29, 1986).

1.

Domiciliary rule applies to stateless persons

Treaty stipulations Principles of Public International Law Laws of Preferential Application (e.g. Ambassadors, Ministers) International agencies enjoying diplomatic immunity

Double Renvoi  - It is what occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi . Transmission - It is the process of applying the law of a foreign state through the law of a second foreign state. It is not the same as renvoi   because renvoi  involves two laws while transmission involves three laws.

Status laws

GR: Nationality rule (Lex Nationali) - Laws relating to: a. Family rights and duties b. Status and condition c. Legal capacity of persons are binding upon citizens of the Philippines even though living abroad (Art. 15) (1999, 2003, 2004, 2005, 2009) XPNs: a. In case of divorce obtained validly by an alien pursuant to the rules that governs his country, the Filipino spouse shall be considered also as divorced (Van Dorn v. Romillo, Jr., G.R. No. L-68470, October 8, 1985). The divorce decree must capacitate foreigner to remarry, otherwise, the Filipino cannot remarry.

HUMAN RELATIONS Elements of Abuse of Right: 1. 2. 3. 4.

There is a legal right or duty; Such duty is exercised in bad faith; It is for the sole intent of prejudicing or injuring another; NOTE: The absence of good faith is essential to abuse of right (Elizabeth Diaz v. Georgina Encanto, G.R. No. 171303,  January 20, 2016).

 Article 19, 20 and 21 in the enforcement and sanctions sanctions of abuse of right

Once it is proven however that a party was no longer a Filipino citizen when he obtained the divorce from his Filipino spouse, the ruling in Van Dorn would also

1

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CIVIL LAW While Art. 19 lays down the rule of conduct for the government of human relations, it does not provide a remedy. Generally, an action for damages under either Art. 20 or Art. 21 would be proper. Art. 21 deals with acts contra bonus mores or contrary to good morals and presupposes loss or injury, material or otherwise, which one may suffer as a result of such violation. Under Arts. 19 and 21, the act must be intentional (Rabuya,  2006). Furthermore, Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction.

None.

Limitation

MARRIAGE (FAMILY CODE) Requisites Essential Legal capacity of the contracting parties who must be a male and a female; Consent freely given in the presence of the solemnizing officer (FC, Art. 2).

1. Article 21 on the other hand, speaks of act which is legal but is contrary to morals, good custom, public order or public policy and is done with intent to injure . 2.

Elements of an action under Art. 21, NCC (Contra Bonus Mores) (1996, 1998, 2006, 2009) 1. 2. 3.

There is an act which is legal; Such act is contrary to morals, good customs, public order or policy; It is done with intent to injure.

 Accion In Rem Verso Verso (NCC, Art. Art. 22) It is the remedy for unjust enrichment.It is an action for recovery of what has been paid or delivered without just cause or legal Ground. Itcan only be availed of if there is no other remedy to enforce it based on contract, quasi-contract, crime or quasi-delict.

Requisites (E-L-W-A) 1. 2. 3. 4.

1. 2. 3.

Unjust Enrichment The main objective of the principle against unjust enrichment is to prevent one from enriching himself at the expense of another without just cause or consideration. (Locsin v. Mekeni Food Corporation, G.R. No. 192105, December 9, 2013, DEL. CASTILLO,  J.)

PART II– PERSONS AND FAMILY RELATIONS PERSONS AND PERSONALITY (CIVIL CODE)

Definition

 Acquisition

JURIDICAL CAPACITY Fitness to be the subject of legal relations. (NCC, Art. 37) Inherent (coexists with the natural person),

CAPACITY TO ACT Power to do acts with legal effect. (NCC, Art. 37) Acquired through fulfilment of specific legal activities.

2.

3.

 Age – at least 18 years of age Sex – between male and female Lack of legal impediment to marry (Art. 37 & 38)

Marriage Ceremony No particular form of ceremony or religious rite for solemnization of the marriage is required by law (FC, Art. 6). AS LONG AS the marriage takes place with the:

The defendant has been Enriched; The plaintiff has suffered a Loss; The enrichment of the defendant is Without just or legal ground; and The plaintiff has no other  Action based on contract, quasicontract, crime or quasi-delict.

In accion in rem verso , it is not necessary that there should have been mistake in the payment unlike in solution indebiti where mistake is an essential element (Rabuya, 2006).

1.

Formal (C-A-L) Marriage Ceremony  Authority of the Solemnizing Officer Valid Marriage License (FC, Art.3)

Requisites for legal capacity of the parties to marry (ASL)

1.

 Accion in rem verso verso v. Solutio Debiti

Art. 38 on restrictions and Art. 39 of the NCC on modifications/limitatio ns on the capacity to act.

Personal appearance of the contracting parties before the solemnizing officer;

NOTE: There is no marriage ceremony if what transpired was a mere private act of signing a marriage contract by the contracting parties, without the presence of the solemnizing officer ( Morigo v. People, G.R. No. 145226, February 6, 2004) 2. 3.

Their  personal declaration  that they shall take each other as husband and wife; and In the presence of not less than  2 witnesses of legal age.

The declaration of consent need not be vocally expressed. It can be shown by other manifestations or signs of approval and consent. It is the agreement itself, and not the form in which it is couched, which constitutes the contract (Sta. Maria, 2010).

 Authority of the solemnizing solemnizing officer officer Marriage may be solemnized by;

Under ordinary circumstances:

1. a.

Incumbent judiciary member – Provided,  it is solemnized in the place where the court exercises jurisdiction. NOTE: Where a judge solemnized a marriage outside his court’s jurisdiction, this is a mere irregularity in the formal requisite , which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability(Rabuya, liability (Rabuya, ).  2017 ).

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 c.

d.

Consul general, consul or vice-consul – Provided  both parties are Filipinos and marriage takes place abroad in the country where the consul holds office. Mayors ( Arts. 444 and 445 of LGC ) –  including “Acting Mayor” NOTE:  From the time of the effectivity of the Family Code on August 3, 1988 up to the time of the effectivity of the Local Government Code on January 1, 1992, mayors do not have the authority to solemnize marriage.

2.

Other requirements:

NOTE:  the license shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it (FC, Art. 20). Parental consent and certificate of marriage counselling : if any party is aged 18 to below 21 y/o Parental advice and certificate of marriage counselling : if any party is aged 21 to 25 y/o

Marriages in articulo mortis: Parental Consent and Advise a.

Ship captain or airplane chief  –  provided   the marriage is performed: i. During voyage, even during stopovers ii. Between passengers or crew members (Art.31)

 AGE

18 to 21 years old

NOTE: Such authority may be exercised not only while the ship is at sea or the plane is in flight but also during stop-overs at ports of call ( Rabuya, ).  2017 ). b.

Military commander  of a unit who is a commissioned officer –  provided   the marriage is performed: i. In the absence of a chaplain; ii. Within the zone of military operation; iii. Between members of the armed forces or civilians

Valid marriage License (Art. 3) GR:All contracting parties to a marriage must obtain a valid marriage license.

22 to 25 years old

Parental advice and Marriage counseling

Absence of the additional requirement of parental advice does not   make the marriage void or voidable. It only affects the release of the marriage license to be postponed until (3) three months from the complete publication of the application.

Requisites for the 5-year cohabitation as an exception to the marriage license requirement (2002, 2008) The requisites are: (5D PAS) 1. Living together as husband and wife at least 5 years before the marriage. The 5 year period must be characterized by:

XPN: The following are exempt from the marriage license requirement: (M-A-R-C-O)

a.

Marriages among Muslims or members of ethnic cultural communities –  Provided they are solemnized in accordance with their customs, rites or practices (FC, Art. 33);

b.

1.

 ADDITIONAL  ADDITIONAL REQUIREMENTS Parental consent  and  and Marriage counseling

Exclusivity  –  the partners must live together exclusively, with no other partners, during the whole 5-year period. Continuity – such cohabitation was unbroken.

NOTE: The period is counted from the date of celebration of marriage. It should be the years immediately before the day of the marriage. No legal impediment to marry each other During the period of cohabitation. Fact of absence of legal impediment must be Present at the time of the marriage. Parties must execute an  Affidavit that they are living together as husband and wife for 5 years and that they do not have any impediment to marry Solemnizing officer must execute a Sworn statement that he had ascertained the qualifications of the parties and found no legal impediment to their marriage (Manzano v. Sanches, .AM. No. MTJ-00-1329, March 8, 2001).

Marriages in Articulo mortis a. In case either or both of the contracting parties are at the point of death FC, (Art. 27); b. Solemnized by a ship captain or airplane pilot (FC, Art. 31); c. Within zones of military operation (FC, Art. 32)

2.

3.

Marriages in Remote places (FC, Art. 28) Remote Place - no means of transportation to enable the party to personally appear before the local civil registrar (Rabuya, 2017 ). ).

5.

4.

Marriages between parties Cohabiting for at least 5 years and without legal impediment to marry each other (FC, Art. 34);

5.

Marriages solemnized Outside the Philippines where no marriage license is required by the country where it was solemnized. FC, (Art. 26, par. 1)

--Q: On Valentine's Day 1996, Ellas and Fely, both single and 25 years of age, went to the city hall where they sought out a fixer to help them obtain a quickie marriage. For a fee, the fixer produced an antedated marriage license for them, Issued by the Civil Registrar of a small remote municipality. He then brought them to a licensed minister in a restaurant behind the city hall, and the latter solemnized their marriage right there and then. (1996, 2008 BAR)

2.

Other Requirements in securing Marriage License if local : in the local civil registrar of the city or municipality where either

3. 4.

a. Is their marriage valid, void or voidable? Explain.

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CIVIL LAW  A: NO, the answer would not be the same. The marriage would be void because of the absence of a formal requisite. In such a case, there was actually no valid marriage license. --Q: In 2002, Jerry and Jenny celebrated their church wedding in Laguna. They did not have a civil wedding. Year later, Jerry filed with the RTC a petition for declarion of nullity of marriage on the Ground of psychological incapacity. The RTC dismissed the case for lack of jurisdiction arguing that the procedure is governed by the Church's Canon Law and not by the civil law observed by the State in nullity cases involving civil marriages. Thus, the principle of separation of Church and State finds application applicatio n in this case. Is the RTC correct?

Requirements to prove a foreign marriage 1. 2.

Requirements for the application of par. 2 of Art. 26 of the Family Code 1. 2. 3.

 A: NO. The contract of marriage is entered into by complying with the requirements and formalities prescribed by law. Although, marriage is considered a sacrament in the Catholic church, it has civil and legal consequences which are governed by the Family Code. The instant petition only seeks to nullify the marriage contract between the parties as postulated in the Family Code of the Philippines; and the declaration of nullity of the parties' marriage in the religious and ecclesiastical aspect is another matter. Notably, the proceedings for church annulment which is in accordance with the norms of Canon Law is not binding upon the State as the couple is still considered married to each other in the eyes of the civil law. Thus, the principle of separation of the church and state finds no application in this case. (Tilar v. Republic, G.R. No. 214579, July 17, 2017, Peralta, J.) Rules governing the validity of marriage (2002, 2004, 2006, 2009, 2010 BAR) 1.

 As to its extrinsic extrinsic validity – validity – Lex loci celebrationis NOTE: Locus regit actum (the act is governed by the law of the place where it is done) - is adhered to here in the Philippines as regards the extrinsic validity of marriage.

The existence of the pertinent provision of the foreign marriage law. The celebration or performance of the marriage in accordance of said law.

It must be a case of mixed marriage (one party is Filipino and the other is an alien); The divorce must be obtained by the alien spouse and not by the Filipino spouse; and The divorce obtained by the alien spouse must capacitate him or her to remarry ( Rabuya, 2017 ). ).

NOTE: In the case of REPUBLIC v. MANALO (G.R. No. 221029, April 24, 2018,  J. Peralta, EN BANC), the Supreme Court recognized that a divorce decree initiated BY the Filipino spouse abroad, capacitating the foreigner spouse to remarry is valid and its effects shall likewise be recognized in the Philippines. The Court ruled that the second paragraph of Art. 26 only require that there be a divorce decree validly obtained  abroad.   abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceeding wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding. Moreover, the Court held that whether the Filipino spouse initiated the foreign divorce proceeding or not, a favorable decree dissolving the marriage bond capacitating his/her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a husband or wife.

NOTE: Personal law may either be the national law or the law of the place where the person is domiciled.

Therefore, the subject provision should not make a distinction. In both instances, it is is extended as a means to recognize the residual effect of the foreign divorce decree on Filipinos whose marital ties to their alien spouses are severed by operation of the latter's national law.

If the person involved is a stateless person, domiciliary rule applies, otherwise, lex nationalii applies.

NOTE: This decision was promulgated on  April 24, 2018, hence, NOT part of the Bar syllabus cut-off.

The 1st   paragraph of Article 26 of the Family Code (FC)on the validity of foreign marriages applies, however, only to Filipinos. Foreign marriages of foreigners or of a Filipino and a foreigner are governed by the Rules on Conflict of Laws (Sempio-Diy, 1995).

Q: What are the requisites for psychological incapacity (1996, 1997, 2002, 2006)

2.

 As to its intrinsic intrinsic validity – validity – Personal law

 A: The three basic requisites  are the following: 1.

Marriages between Filipinos solemnized abroad in accordance with the law in force in said country (FC, Art. 26)

The root cause of the psychological incapacity must be: (a) Medically or clinically identified, (b) Alleged in the complaint, (c) Sufficiently proven by the experts, (d) Clearly explained in the decision.

GR:  Marriages between Filipinos solemnized outside the Philippines in accordance with the law of the foreign country where it is celebrated, if valid there, shall be valid here as such. XPNs: It shall be void, even if it is valid in the foreign country where the marriage was celebrated, if any of the following circumstances are present: 1. 2. 3. 4.

Lack of legal capacity even with parental consent (e.g. party is below 18); Incestuous; Contracted through Mistake of one party as to the identity of the other; Contracted following the annulment or declaration of nullity of a previous marriage but Before partition, etc.;

Juridical antecedence – Must be rooted in the history of the party antedating the marriage, although overt manifestations may arise only after such marriage.

NOTE: A.M. No. 02-11-10-SC, effective March 15, 2003 and Barcelona vs. CA (2003) provide that expert opinion is not a condition sine qua non for proof of psychological incapacity. The root cause may be proven by the totality of evidence in actual trial. 2. 3.

Gravity – Grave enough to bring about the disability of the party to assume the essential marital obligations. Permanence or Incurability –  must be incurable or, if curable, the cure should be beyond the means of the

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 5. 6.

7.

The incapacity must be proven to be existing at “the time of the celebration” celebration” of the marriage The essential marital obligations must be those embraced by Arts. 68 up to 71 of the FC as regards the husband and wife, as well as Arts. 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision; Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts;

In Marcos v. Marcos , the SC held categorically that psychological incapacity “may be established by the totality of evidence presented” and that “there is no requirement that the respondent should be examined by a physician or a psychologist as a condition si ne qua non for such declaration” (Marcos v. Marcos, G.R. No. 136490, October 19, 2000).

by reason of Article 40, the donation remains valid. XPN to the XPN:  If the donee spouse contracted the marriage in bad faith, all donations are revoked by operation by law. iii. When both parties to a subsequent marriage contracted in bad faith under Article 44, all donations  propter nuptias are revoked by operation by law. 4.

Designation as Beneficiary in Insurance Policy  If the subsequent marriage is judicially declared void by reason of Article 40, the innocent spouse may revoke such designation if the beneficiary spouse acted in bad faith, even if such designation be stipulated as irrevocable.

5.

Right to Inherit  a. Intestate Succession: The parties cannot inherit from each other by way of intestate succession since they are no longer considered as spouses b. Testate Succession: GR:  Any testamentary provision by one in favour of the other shall remain valid. XPN: 1. If the subsequent marriage is rendered void by noncompliance with Article 40 of the Family Code, the spouse who contracted the subsequent marriage in bad faith is disqualified to inherit from the innocent spouse. 2. If the marriage is void by reason of the bad faith of both parties under Article 41 of the Family Code, all testamentary dispositions made by one in favour of the other are revoked by operation of law.

NOTE:The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003) provide that the appearance of the prosecuting attorney or fiscal and the Solicitor-General is no longer mandatory. Incestous Marriages 1. 2.

Between ascendants and descendants of any degree, legitimate or illegitimate Between brothers and sisters, whether of the full or half blood, legitimate or illegitimate

6.

Subsequent marriage If a person contracts a subsequent marriage during the subsistence of a prior marriage, the subsequent marriage is: (1992, 2005, 2008)

XPN:  If the marriage is declared void by the reason of psychological incapacity of either or both of the parties, the parental authority and the custody will be exercised by the parent designated by the court.

GR:Void for being bigamous or polygamous, even if celebrated abroad and valid there as such. XPN: Valid if it is a terminable subsequent marriage. Elements : a. Prior spouse has been absent for a period of 4 years, or in case there is danger of death, 2 years. b. There is well-founded belief that the absent spouse is dead c. There is judicial declaration of presumptive death of the absentee spouse

Effects of Decree of Annulment 1. 2.

3.

Effects of Declaration of Nullity 1.

2.

Status of the Children (1990, 2010) GR: Illegitimate XPN: Legitimate if: i. If the marriage is void on the ground of psychological incapacity of either or both parties; or ii. If the marriage is void due to the non-compliance with the requirements set forth under Article 52 of the Family Code. Property Relations GR: Either Article 147 or 148 (Co-Ownership) will apply XPN:  If the subsequent marriage is void due to noncompliance with Article 40, the property relations of the void subsequent marriage will either be absolute community or conjugal partnership of gains.

Parental Authority and Custody of Children GR:  Since the children are considered as illegitimate, the parental authority and the custody of the children will be exercised by their mother. The illegitimate father even if he admits paternity, will only have visitation rights.

4.

5.

6.

Termination of the marital bond. Children conceived or born before the judgment judgment of annulment has become final and executory are considered legitimate. Absolute community property regime or the conjugal partnership property regime is terminated of dissolved and the same shall be liquidated in accordance with the provisions of Arts. 102 and 129. The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in the insurance policy whether or not the designation is revocable. The spouse who contracted the marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession Donation propter nuptias GR: It shall remain valid XPN: If the donee spouse acted in bad faith, the donor may revoke the donation.

Remarriage after declaration of nullity or annulment A person must comply with the requirements of Art.52 of the FC before he can remarry, viz, the Recording and registration of: (J-P-D-D)

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CIVIL LAW Voidable Marriage

A voidable marriage is considered valid and produces all its civil effects until it is set aside by final judgment of a competent court in an action for annulment (Rabuya, 2006). Simply, a voidable marriage is valid until it is annulled (Paras, 2016).

GROUNDS (FC, Art. 45)

WHO MAY RATIFY/HOW RATIFIED

NON-AGE: that one of the parties is 18 years of age or over but below 21 and the marriage was solemnized without parental consent

By the party who has not obtained parental consent

INSANITY –  either party was of unsound mind

FRAUD - consent of either party was obtained by Fraud

IF after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; By the insane party

IMPOTENCE –  either party was physically incapable of consummating the marriage with the other STD –  either party was afflicted with a sexually transmissible disease

By the party whose consent was vitiated





Declaration of Nullity of Marriage

a.

The drug addiction must amount to psychological incapacity.

a.

The drug addiction must be concealed; It must exist at the time of marriage; There should be no cohabitation with full knowledge of the drug addiction; The case is filed within five (5) years from discovery. There should be no condonation or consent to the drug addiction; The action must be filed within five (5) years from the occurrence of the cause. Drug addiction arises during the marriage and not at the time of marriage.

b.

 Annulment of Marriage

c.

d. a.

Legal Separation

b.

c.

By the party whose consent was vitiated IF the force had disappeared and ceased, and such party freely cohabited with the other CANNOT be ratified REQUISITE: physical incapacity continues and appears to be incurable CANNOT be ratified REQUISITES: STD must be (a) serious; and (b) incurable

NOTES: 

 A:

IF after coming to reason, he/she freely cohabited with the other

IF, with full knowledge of the facts constituting the fraud, he/she freely cohabited with the other FORCE - consent obtained by Force, Intimidation or Undue Influence

Q: Under what conditions, respectively, may drug addiction be a ground, if at all, for the declaration of nullity of marriage, annulment of marriage, and legal separation? (1997 BAR)

EFFECTS OF DECREE OF NULLITY OF MARRIAGE vis-à-vis EFFECTS OF DECREE OF ANNULMENT NULLITY OF MARRIAGE GR: Illegitimate XPN:

 As to the children conceived or born before the  judgment has become  final and executory

 As to  property relations

The grounds for a voidable marriage must exist at the time of the celebration of the marriage. A voidable marriage can be assailed only in a direct proceeding for that purpose. The marriage may be questioned only during the lifetime of the parties by the party who may attack such marriage within the prescribed periods, both under Art. 47 of the Family Code

Doctrine of Triennial Cohabitation If after 3 years of living together with her husband, the wife remained a virgin, the husband is presumed to be impotent (Rabuya, 2017). The husband will have to overcome this presumption.

 As to donations  propter nuptias

Marriage is void on the ground of psychological incapacity (Art. 36); or 2. Marriage is void due to noncompliance with the requirements of Art. 53 in rel. to Art. 52 GR:  Either Article 147 or 148 (Co-Ownership) will apply XPN:  If the subsequent marriage is void due to non-compliance with Article 40, the property relations of the void subsequent marriage will either be absolute community or conjugal partnership of gains. GR:  Revocable at the instance of the donor XPN: If the subsequent marriage is judicially declared void by reason of Article 40, the donation remains valid.

 ANNULMENT  ANNULM ENT

Legitimate

1.

Absolute community property regime or the conjugal partnership property regime is terminated, dissolved and liquidated

GR:remain valid XPN:  If the donee spouse acted in bad faith, the donor may

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 Designatio n as beneficiary in the insurance  policy of the other  spouse who acted in bad faith

If the subsequent marriage is judicially declared void by reason of Article 40, the innocent spouse may revoke such designation even if such designation be irrevocable.

The designation may be revoked by the innocent spouse even though the designation be irrevocable

Intestate Succession: The parties cannot inherit from each other

 As to  succession

Testate Succession: GR:  Any testamentary provision by one in favour of the other shall remain valid. XPN: 1. If the subsequent marriage is rendered void by noncompliance with Article 40 of the Family Code, the spouse who contracted the subsequent marriage in bad faith is disqualified to inherit from the innocent spouse. 2. If the marriage is void by reason of the bad faith of both parties, all testamentary dispositions made by one in favour of the other are revoked by operation of law.

The spouse in bad faith is disqualified to inherit from the innocent spouse by testate and intestate succession

LEGAL SEPARATION Grounds (1997, 2002, 2003, 2006, 2007) (RiP Ang Forever Dahil SACAL na) 1. 2. 3.

4. 5. 6.

Repeated physical violence or grossly abusive conduct against petitioner, common child, child of petitioner; Physical violence or moral pressure to compel petitioner to change religious or political affiliation  Attempt to corrupt or induce petitioner, common child, child of petitioner to engage in prostitution, or connivance in such corruption or inducement; Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned; Drug addiction or habitual alcoholism of respondentwhich must exist after  celebration   celebration of marriage; Sexual infidelity or perversion;

Where to file

Family Court of the province or city where the petitioner or the respondent has been residing for at least 6 months prior to the date of filing or in case of a non-resident, where he may be found in the Philippines, at the election of the petitioner

NOTE: It must be stressed however that in certain acts like adultery, each adulterous act is a separate cause for legal separation. Prescription will be based on the last act. (Pineda, 2011, p.172) --Q: After they got married, Nikki discovered that Christian was having an affair with another woman. But Nikki decided to give it a try and lived with him for two ( 2) years.  After two (2) years, Nikki filed an action for legal separation on the ground of Christian’s sexual infidelity. Will the action prosper? Explain. (2012 BAR)  A: Nikki’s action will not prosper on account at  condonation. Although the action for legal separation has not yet prescribed, the prescriptive period being five years, the decision of Nikki to live with Christian after discovering his affair amounts to condonation of such act. However, if such affair is still continuing, Nikki's action would prosper because the action will surely be within (5) years from the commission of the latest act of sexual infidelity. Every act or sexual liaison is a ground for legal separation. ---

PROPERTY RELATIONS OF THE SPOUSES 1. 2. 3. 4.

Absolute Community of Property (ACP) Conjugal Partnership of Gains (CPG) Absolute Separation of Property (ASOP) Any other regime within limits provided by the FC

 ACP When spouses: 1. Adopt it in a marriage settleme nt; 2. Do not choose any economic system; or  3. Adopted a different property

CPG ASOP When it applies 1. When the 1. When future spouses future adopt it in a marriage spouses settlement; adopt it in a 2. ACP or CPG is dissolved; marriage 3. Prior marriage is settlement; dissolved due to death of 2. If the one spouse and surviving marriage is spouse failed to comply celebrated with the requirements under the under Art. 103 (judicial New Civil settlement proceeding of Code and the estate of deceased they have spouse); not adopt 4. By judicial order. Judicial any separation of property economic may either be voluntary  system. or for sufficient cause.

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CIVIL LAW (1995, 2004, 2008)

1998, 2005,

Effect of Separation In Fact The separation in fact shall not affect the regime of ACP/CPG, but: 1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; 2. When consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding. 3. In case of insufficiency of community or conjugal partnership property, separate property of both spouses shall be solidarily  liable for the support of the family. Spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisf y the latter’s share (Arts. 100 & 127, FC). Effect of Dissolution Upon Upon dissolution dissolution of and the liquidation partnership, of the the separate community properties of property, the spouses what is are returned divided and only the equally net profits of between the the spouses or partnership their heirs is are divided the net equally the remainder  of between the spouses of properties of their heirs. the ACP.

Salaries wages

&

Property exclusively acquired

Property acquired by both through their work or industry Presumption

must be capacitated to marry each other; 2. live exclusively with each other as husband and wife; and 3. their union is without the benefit of marriage or their marriage is void (MercadoFehr v. Fehr, 414 SCRA 288, 2003; Salas, Jr. v. Aguila, G.R. No. 202370, 2013) Owned in equal shares

Belongs to such party upon proof of acquisition through exclusive funds Governed by rules of coownership

Property acquired while living together presumed obtained by their joint efforts, work or industry and owned by them in equal shares. If one party did not participate

2.

each other or they do not live exclusively with each other as husband and wife; and Their union is without the benefit of marriage or their marriage is void (Art. 148).

Separately owned by the parties. If any is married, his/her salary pertains to the ACP/CPG of the legitimate marriage. Belongs to such party

Owned in common in proportion to their respective contributions

No presumption of joint acquisition. Actual joint contribution of money, property or industry shall be owned by them in common proportion. However, their contributions are presumed equal, in the absence if proof to the contrary

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 share of the party in bad faith in the coownership shall be forfeited in favor of:

Proof of actual contribution

1. their common children 2. in case of default of or waiver by any or all of the common children or their descendant  s, each vacant share shall belong to the respective surviving descendant  s 3. In the absence of descendant  s, such share shall belong to the innocent party. Not necessary

If the party who acted in BF is not validly married to another or if both parties are in BF, such share be forfeited in manner provided in the last par. of Art. 147

Guidelines in the constitution of the Family Home 1. 2. 3. 4. 5. 6.

FH is deemed constituted from the time of actual occupation as a family residence; Only 1 FH may be constituted; Must be owned by the person constituting it; Must be permanent; Same rule applies to both valid and voidable marriages and even to common law spouses; (FC, Arts. 147 and 148) It continues despite death of one, both spouses, or an unmarried head of the family for 10 years or as long as there is a minor beneficiary (FC, Art 159).

NOTES: a.

b.

c.

Property that is subject of a conditional sale on instalment(s) where ownership is reserved by the vendor to guarantee payment of the purchase price may be constituted as a FH. The heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the FH (FC, Art 159). The FH must be part of the properties of the absolute community or the conjugal partnership or the exclusive properties of either spouse, with the latter’s consent. It may also be constituted by an unmarried head of a family on his or her own property (FC, Art 156).

PATERNITY AND FILIATION

Legitimate children GR: One who is conceived OR born during the marriage of the parents (FC, Art. 164).

Necessary

Property regime governing the property relations of spouses in the absence of marriage settlement or when regime agreed upon is void (1992, 1995, 2005) GR: Absolute Community Property (Art. 75) XPNs: 1. For marriages contracted prior to the effectivity of the FC on August 3, 1988, conjugal partnership of gains shall govern the property relations because Art. 119 of the NCC will apply. The provisions of the FC shall have no retroactive effect because it shall impair vested rights. 2. Subsequent marriage contracted within one year from the death of the deceased spouse without liquidation of the community property or conjugal partnership of gains, either judicially or extrajudicially, as required under Arts. 103 and 130 of the FC. In such case, a mandatory regime of

XPN: Born outside of a valid marriage (void marriages) but considered as legitimate child: 1. 2.

Children of marriages which are declared void under Art. 36; and Children of marriages which are declared void under Art. 53 (Rabuya, 2017 ). ).

Requisites for a child conceived by artificial insemination to be considered legitimate (FC, Art. 166 no. 3) 1. 2.

3.

4.

The artificial insemination is made on the wife, not on another woman; The artificial insemination on the wife is done with the sperm of the husband or of a donor, or of both the husband and a donor; The artificial insemination has been authorized or ratified by the spouse on a written instrument executed and signed by them before the birth of the child; and The written instrument is recorded in the civil registry together with the birth certificate of the child (FC, Art. 164).

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CIVIL LAW innocent offspring from the odium of illegitimacy (Liyao, Jr. v. Tanhoti-Liyao, G.R. 138961, March 7, 2002).

a. b.

The presumption of legitimacy under Article 164 of the Family Code may be availed only upon convincing proof of the factual basis therefor, i.e., that the child’s parents were legally married and that his/her conception or birth occurred during the subsistence of that marriage. Else, the presumption of law that a child is legitimate does not arise (Angeles v. Maglaya, G.R. No. 153798, September 2, 2005).

NOTE: The child by himself cannot choose his own filiation. Neither can he elect the paternity of the husband of his mother when the presumption of his legitimacy has been successfully overthrown. Rule on status of child where the mother contracted another marriage within 300 days after termination of the former (1999) The child shall be considered as conceived during the: 1.

2.

Former marriage– marriage– if child is born: Before  180 days after the solemnization of the subsequent marriage,  provided   it is born within  300 days after termination of former marriage Subsequent Subsequent marriage –if a child is born: 180 days after   the celebration of the subsequent marriage, even though  it be born within 300 days after the termination of the former marriage.  ACTION TO IMPUGN LEGITIM LEGITIMACY ACY V.  ACTION TO TO CLAIM LEGITIM LEGITIMACY ACY BASIS

Remedy

Real party in interest

ACTION TO IMPUGN LEGITIMACY Action to impugn legitimacy or illegitimacy. GR: Husband XPNs: Heirs, in cases where: 1. Husband died before the expiration of the period for bringing the action; 2. Husband died after filing the complaint, without having desisted; 3. Child was born after the death of husband.   husband

 ACTION TO TO CLAIM LEGITIMACY Action to claim legitimacy (compulsory recognition). GR: Child XPNs:  Heirs of the child, in cases where: 1. Child died in state of insanity 2. Child died during minority

c.

2.

3.

Physical incapacity   of the husband to have sexual intercourse with his wife; The fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or Serious illness   of the husband which absolutely  prevented intercourse.

Proved that for biological or other scientific reasons , the child could not have been that of the husband, except  in the case of children conceived through artificial insemination. In case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation or undue influence.

Kinds of proof of filiation (1995, 1999, 2010) 1.

2.

 proof consists of the ff: Primary  proof a. Record of birth appearing in civil registrar or final judgment; b. Admission of legitimate filiation in public document or private handwritten instrument signed by parent concerned.  consists of the ff: Secondary  consists a. Open and continuous possession of legitimacy; b. Any means allowed by the Rules of Court and special laws.

Rights of an illegitimate child 1. 2. 3. 4.

They shall use the surname of the mother; They shall be under the parental authority of the mother; They shall be entitled to support in conformity with the FC; They shall shall be entitled to a legitime which shall consist of ½ of the legitime of a legitimate child ( Art. 176).

Legitimated Children Children conceived and born   outside of wedlock of parents who, at the time of conception of the former, were not disqualified by any impediment to marry each other, or were so disqualified only because either or both of them were below eighteen (18) years of age, may be legitimated ( Art. 177 , FC as amended by R.A. 9858).(1990, 2004, 2008, 2009 BAR)

 ADOPTION

NOTE:  Must be filed within 5 years.

Domestic Adoption Act of 1998 (RA 8552) Who can adopt 1. 2. 3.

Filipino citizens; Aliens; Guardians with respect to their ward

NOTE:  Guardian may only adopt his ward after the GR: During the lifetime

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 Qualifications of an alien who may adopt under R.A. 8552

Who may rescind the adoption

1.

The adoptee has the  sole right  to   to severe the legal ties created by adoption and the one who will file the action for rescission. However, if the adoptee is still a minor or above 18 years of age but incapacitated, the Department of Social and Welfare Development as the adoptee’s guardian or counsel may assist the adoptee for rescinding the decree of adoption.

2. 3. 4.

5.

Possesses same qualifications as those enumerated for Filipino adopters; His country has diplomatic relations with the Philippines; His government allows the adoptee to enter his country as his adopted child He has been certified by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in their country GR:  Has been living in the Philippines for at least 3 continuous years prior to the application for adoption and maintains such residence until adoption decree has been entered. XPNs: a. He is a former Filipino who seeks to adopt a relative within the 4th civil degree of consanguinity or affinity, b. He is married to a Filipino and seeks to adopt jointly with his spouse a relative within the 4th  degree of consanguinity or affinity, c. He is married to a Filipino and seeks to adopt the legitimate or illegitimate child of his Filipino spouse.

NOTES: 1. 2.

Joint adoption is only allowed between husband and wife. The use of the word “shall” in the above -quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. (In Re: Petition for Adoption of Michelle P. Lim, In Re: Petition for Adoption of Michael Jude P. Lim, Monina P. Lim, G.R. Nos. 168992-93, May 21, 2009).

Intercountry Adoption Act of 1995 (R.A 8043) Rule on Joint Adoption of Spouses Who can adopt: GR:  Husband and wife shall adopt jointly (Sec. 7, Article 3, RA 8552)

1. 2.

Any alien; Filipino citizen, both permanently residing abroad.

XPNs: a. b.

One spouse seeks to adopt the legitimate son or daughter of the other; One spouse seeks to adopt his own illegitimate son or daughter, PROVIDED, that the other signifies his consent

NOTE:  In seeking to adopt his own illegitimate son or daughter, the law requires that the consent of the spouse of the adopter must be given to such adoption. If on the other hand, the spouse would adopt the illegitimate son or daughter of the other, joint adoption is still mandatory c.

Spouses are legally separated.

Who may be adopted 1.

2. 3. 4.

5. 6.

Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; The legitimate son/daughter of one spouse by the other spouse; An illegitimate son/daughter by a qualified adopter to improve his/her status to that of a legitimate; A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; A child whose adoption has been previously rescinded; or A child whose biological or adoptive parent(s) has died: Provided, that no proceedings shall be initiated

Qualifications needed for a Filipino or alien to adopt (Sec. 9) 1.  At least 27 years old and 16 years older than the child to be adopted at the time of the application unless: a. adopter is the parent by nature of the child; b. adopter is the spouse of the parent by nature of the child to be adopted 2. If married, his spouse must jointly file for adoption; 3. Has the capacity to act or assume all rights and responsibilities of parental authority; 4. Not been convicted of a crime involving moral turpitude; 5. Eligible to adopt under his national law; 6. In a position to provide for proper care and support and give necessary moral values; 7. Agrees to uphold the basic rights of the child mandated by the UN convention of rights of Child and the Philippine Laws; 8. Comes from a country with which the Philippines has diplomatic relations and adoption is allowed under his national law; 9. Possesses all the qualifications and none of the disqualifications under the law or other applicable Philippine laws. SUPPORT Rules on support of illegitimate children of either spouse 1.  ACP or CP - For the support of the following:

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CIVIL LAW 1. 2. 3.

Spouses; Legitimate ascendants & descendants; Parents and their legitimate children, and the legitimate and illegitimate children of the latter; 4. Parents and their illegitimate children, and the legitimate and illegitimate children of the latter; 5. Legitimate brothers and sisters whether full or half-blood (Art. 195). NOTE:Brothers and sisters not legitimately related are likewise bound to support each other. However, when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant’s fault or negligence, in this case, the illegitimate brother or sister has no right to be supported (Rabuya, 2017 ). ).

The liability to support should be observed in the  following order : 1. 2. 3. 4.

Spouse Descendants in the nearest degree Ascendants in the nearest degree Brothers and sisters

PARENTAL AUTHORITY Parental preference rule The natural parents, who are of good character and who can reasonably provide for the child are ordinarily entitled to custody as against all persons.

Exercise of parental authority in case of absence, death, remarriage of either parent, or legal or de facto separation of parents 1. 2.

3.

 Absence or death of either parent  –  parent present shall continue exercising parental authority Remarriage of either parent – parent  – it shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children (Art. 213). Legal or de facto separation of parents –  the parent designated by the court.

Tender-Age Presumption

Q: Distinguish briefly but clearly between: Substitute parental authority and special parental authority  A: Substitute Parental  Authority the parents lose their parental authority in favor of the substitute who acquires it to the exclusion of the parents The authority is not limited to the time the child is in their custody or supervision Displaces parental authority

Special Parental  Authority the parents or anyone exercising parental authority does not lose parental authority Exercises authority only during the time that the child is in their custody or supervision Concurs with parental authority

 ABSENCE  ABSENC E Kinds of absence 1. Physical Absence 2. Legal Absence 3 Stages of Absence 1.

2.

3.

Provisional Absence –  when a person disappears from his domicile his whereabouts being unknown, without leaving an agent to administer his property ( Art. 381). Declared Absence –  when a person disappears from his domicile and 2 years thereafter have elapsed without any news about him or since the receipt of the last news, or 5 years have elapsed in case he left a person to administer his property ( Art. 384). Presumptive Death –  the absentee is presumed dead (Jurado, 2011)

Presumption of Death Kinds of presumed death 1. Ordinary presumption- disappears under normal conditions without danger or idea of death. 2. Extraordinary presumption- disappearance with great probability of death.

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018

PART III – PROPERTY CHARACTERISTICS Property All things which are or may be the object of appropriation considered as either real or personal property (NCC, Art. 414). It is an object or a right which is appropriated or susceptible of appropriation by man, with capacity to satisfy human wants and needs (Pineda, 1999).

NOTE: Property does not only cover material things because it mentions of rights which could either be classified as real or personal right. CLASSIFICATION 1.

2.

3.

For a machinery to become immovable under Art. 415 (5) of the NCC, the machinery must be installed by the owner of the tenement. However, the property becomes immovable when there is a provision in the lease contract making the lessor, at the end of the lease, owner of the machinery installed by the lessee, the said machinery is considered to have been installed by the lessor through the lessee who acted merely as his agent. ( Davao Sawmill v. Castillo, 61 Phil 709). A warehouse which is a construction adhered to the soil is an immovable by nature under Art. 415(1), and the proper venue of any case to recover ownership of the same should be the place where the property is located (1997 BAR).

 A floating platform made of wood and metal is an immovable property under Art. 415(9) NCC since it is intended to remain permanently where it is situated, even if it is tethered to a ship which is anchored to the seabed. The equipment and living quarters attached therein are likewise immovable property  under Art. 415 (3) of the NCC as it is attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object. The equipment can also be classified as an immovable property under Art. 415 (5) NCC because such

 A:  Accion interdictal It is a summary action to recover physical or material possession only and it must be brought within one year from the time the cause of action arises. It may be: 1. Forcible Entry 2. Unlawful detainer Forcible Entry

Unlawful Detainer

 As to when possession became unlawful  unlawful  Possessionofthedefendantis unlawful from the beginning as he acquired possession by force, intimidation, strategy, threat or stealth (FISTS).

Possession is inceptively lawful but becomes illegal from the time defendant unlawfully  withholds possession after the expiration or termination of his rightthereto. NOTE: The question of possession is primordial,  whiletheissueofownershipiss  whiletheissueofownershipi generally unessential in unlawful detainer (Rosa Rica  SalesCenterv.Sps.Ong,G.R. 132197,August16,2005).

 As to necessity of demand  No previous demand for the Demandisjurisdictionalifthe Demandisjurisdictionalifthe defendant to vacate is ground is non-payment of necessary. rentals or failure to comply  with the lease contract.  As to necessity of proof of prior physical  possession Plaintiff must prove that he Plaintiffneednothavebeenin  was in prior physical prior physicalpossession. possession of the premises The fact that until he was deprived thereof NOTE:  by the defendant. petitioners are in possession of the lot does not automatically entitle them to remaininpossession(Ganilla remaininpossession(Ganilla v.CA,G.R.No.150755,June28,

2005).

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CIVIL LAW b.

Tax receipts, tax declarations are only prima facie evidence of ownership; it is rebuttable.

443)

Owner Q: Distinguish between principle of self-help and state of necessity. PRINCIPLE OF SELF-HELP

STATE OF NECESSITY

Invoked by the owner or lawful possessor in protection of his right to prevent other persons from interfering with the property.

Availed by another person against someone else’s property for the purpose of averting an imminent danger to himself or to another person or their property.

Planter

No necessity to reimburse the planter of expenses since the planter retains the fruits (Art. 544(1))

Standing Crops Planter in GF Reimbursed for expenses, for production, gathering and preservation (Art.443)

Q: What is a hidden treasure?  A: Any hidden and unknown deposit of money, jewelry orother precious objects, the lawful ownership of which doesnot appear. Hidden treasures refer to processed items such as deposit ofmoney, jewelry, precious objects (gold bar, silver coins). Itdoes not refer to raw materials which are considered of valuewhich are considered as natural resources.

Q: State the rule regarding hidden treasure.  A:

G.R.: If owner is finder, it totally belongs to the owner of theland, building, or other property where it is found. XPN: If the finder is different from the owner, the finder isentitled to 1/2

Q: What are the requisites to be entitled to ½ share?  A: 1. 2.

Discovery was made on the property of another, or of the State or any of its political subdivisions; Discovery was made by chance (The finder had no intention to search for the treasure. There is no agreement between the owner of the property and the finder for the search of

Owner

Owns fruits provided he pays planter expenses for production, gathering and preservation (Art. 443)

Owns fruits provided he pays planter expenses for production, gathering and preservation (Art. 443)

Planter in BF Loses what is built, planted or sown without right to indemnity (Art 449) Entitled to reimbursement for the necessary expenses of preservation of the land (Art. 452) Owns fruits (Art. 449)

Rule when the land owner is the builder, planter or sower (1999 BAR) Land Owner and Builder, Planter or Sower Good Faith Acquire building etc. after paying indemnity for value of materials (Art. 447)

Bad Faith Acquire building etc. after

Owner of Materials

Good Faith 1. Receive indemnity for value of materials; or 2. Remove materials if w/o injury to works, plantings or constructions (Art. 447) Good Faith 1. Be indemnified for value

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 paying indemnity for: a. Necessary expenses, and b. Useful expenses which could either be: a. Original costs of improvements b. Increase in the value of the whole (Art. 443 & 546) 2.

Sell the land to builder and planter or collect rent from sower unless the value of the land is considerably greater than the building etc., in which case, the builder and planter shall pay rent. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof.

after paying indemnity, Builder, Planter, or Sower has the right to retain the thing (and cannot be required to pay rent) until indemnity is paid (Art. 546) If the useful improvements can be removed without damage to the principal thing, the Builder, Planter or Sower may remove them, unless the person who recovers the possession exercises the other (Art. 547 & 447) 2. Sells the land, Builder or Planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof (Art. 448). (1992, 1996,

a.

Acquire improvements without paying indemnity and collect damages (Art. 445 & 449) b. Order the demolition of work or restoration to former condition and collect damages in both cases (Art. 450) c. Sell the land to builder and planter or rent it to the sower, and collect damages in both cases (Art. 450) (2008 BAR) 2. Pay necessary expenses for preservation (Art. 452 & 546). Bad Faith Acquires improvements after paying indemnity and damages to builder, planter, sower, unless the latter decides to remove (Art. 454, 447) He cannot compel the builder planter or sower to buy the land. The reason why said article (Art. 447)  applies may be explained as follows: That if the land owner knew that something was being built, planted or sown on his land by another and he did not interpose any objection thereto, it is as if he was the one building, planting or sowing in bad faith on his own land with materials belonging to another, using the owner of the materials as his

2.

3.

1.

2.

improvements without right to be indemnified unless the latter sells the land (Art. 449)(1996, 449)(1996, 2000 BAR) Recover necessary expenses for preservation of land without the right to retain the thing until the indemnity is paid (Art. 452 & 546) Pay damages to land owner (Art. 451)

Good Faith Receive indemnity for improvements receive and damages; or  Remove them in any event and  receive damages (Art. 454 & 447).

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CIVIL LAW obligation to pay rent until full payment of indemnity. necessary expenses, useful expenses and luxurious expenses (if the LO To remove useful improvements provided it does not cause any injury (this is part of wants to appropriate the luxurious right of retention). improvements). If LO does not appropriate luxurious improvements, BPS can remove the same provided there is no injury to the principal thing (land or building). To purchase land at fair market value when value is not considerably more than that of Option 2: To oblige the BP to buy the land or the S to pay the proper rent the building or trees. unless the value of the land is considerably more than that of the If BPS cannot pay purchase price of land, LO can require BPS to remove whatever has building or trees. been built, planted or sown. If the value of land is considerably more than that of the building or trees, BPS cannot be compelled to buy the land. In such case, BPS will pay reasonable rent if LO does not choose Option 1.

B. GOOD FAITH Option 1: To acq uire whatever has been built, planted or sown without paying indemnity except necessary expenses for preservation of land and luxurious expenses (should LO want to acquire luxurious improvements) plus damages.

If BPS cannot pay the rent, LO can eject BPS from the land. BAD FAITH Loses whatever has been built, planted or sown without indemnity and liable to pay damages. Entitled to reimbursement for necessary expenses for preservation of land but no right of retention. Entitled to reimbursement for useful expenses but cannot remove useful improvements even if removal will not cause injury. Not entitled to reimbursement for luxurious expenses except when LO wants to acquire luxurious improvements (value of which will be the one at the time LO enters into possession).

Option 2: To oblige BP to buy land or S to pay proper rent plus damages. Option 3: To compel BPS to remove or demolish work done plus damages. C. BAD FAITH To acquire whatever has been built, planted or sown by paying indemnity plus damages.

Entitled to remove luxurious improvements if it will not cause injury and LO does not want to acquire them. Obliged to pay for land or proper rent and pay damages. Obliged to remove or demolish work done at his expense and pay damages.

GOOD FAITH If LO acquires whatever has been built, planted or sown, BPS must be indemnified the value thereof plus damages. (If LO does not acquire whatever has been built, planted or sown, BPS cannot insist on purchasing land).

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 Rule when the land owner, builder, planter, sower and owner of materials are different persons Land Owner Builder, Planter, Sower Good Faith Good Faith He shall answer subsidiarily for their Pay value of materials to its owner (Art. 455). 1. value and only in the event that the one who made use of them has no property and with which to pay (Art. 455). If the Land Owner: 2. and 1. Acquires the improvement, Builder, He can either: (Art. 448) Planter, or Sower may demand from the 1. Acquire improvements after paying landowner the value of the materials and indemnity for: labor (Art 455). a. Necessary expenses, and b. Useful expenses which could And he has the right to retain the thing either be: (and cannot be required to pay rent) until a. Original costs of improvements indemnity is paid (Art. 546). b. Increase in the value of the whole (Art. 546 & 443) If the useful improvements can be 2. Sell the land to builder and planter removed without damage to the principal or collect rent from sower unless thing, the possessor in good faith may the value of the land is considerably remove them, unless the person who greater than the building etc., in recovers the possession exercises the which case, the builder and planter other (Art. 547 & 447) shall pay rent. 2. Sells the land or rents it, Builder or Planter cannot be obliged to buy the land The parties shall agree upon the if its value is considerably more than that terms of the lease and in case of of the building or trees. disagreement, the court shall fix the terms thereof. In such case, he shall pay reasonable rent. The parties shall agree upon the terms of the lease and in case of disagreement, the

Owner of Materials Good Faith Collect value of materials primarily from builder, planter, sower, subsidiarily from land owner (Art. 455) or Remove the materials only if w/o injury to the work constructed, or without the plantings, constructions or works being destroyed (Art. 447).

NOTE: Landowner is subsidiarily liable only if he appropriates/acquires the improvements.

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CIVIL LAW

4.

preservation ( Art. 452 & 546) Not subsidiarily liable to the owner of the materials because as to him, the two acted in bad faith ( De Leon,  2006) Bad Faith

good faith (De Leon, 2006) 4.

Pay damages to land owner (Art. 451).

Bad Faith

Bad Faith

Same as though both acted in good faith (in pari delicto) (Art. 453)

Bad Faith Good Faith 1. Acquires improvements after paying If he pays the owner of the materials, plants or indemnity and damages, unless the seeds: latter decides to remove (Art. 454, 447 & i. He may demand from the landowner the 443). value of the materials and labor (Art 455) 2. Cannot compel builder, planter and and shall also be obliged to the reparation sower to buy land. of damages (Art. 447) or ii. Remove the materials in any event, with a right to be indemnified for damages (Art. 454 & 447) Bad Faith Bad Faith The owner of the land shall answer subsidiarily for their value and only in Pay value of materials to its owner (Art. 455) the event that the one who made use of them has no property with which to pay and (Art. 455) If the Land Owner: and

1. Acquires the improvement, Builder, Planter, or Sower may demand from the Land Owner can either: (Art. 448) landowner the value of the materials and labor (Art 455) 1. Acquire improvements after paying indemnity for: And he has the right to retain the thing (and a. Necessary expenses, and

Good Faith 1. Collect value of materials primarily from builder, planter, sower, subsidiarily from land owner (Art. 455) or 2. Remove the materials in any event, with a right to be indemnified for damages (Art. 447)

Good Faith 1. Collect value of materials primarily from builder, planter, sower, subsidiarily from land owner (Art. 455) or 2. Remove the materials in any event, with a right to be indemnified for damages (Art. 447)

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 2. Cannot compel builder, planter and sower to buy land. ii.

and shall also be obliged to the reparation of damages (Art. 447) or Remove the materials in any event, with a right to be indemnified for damages (Art. 454 & 447)

The builder, planter or sower would be considered merely an agent of the owner of materials. Therefore, the provisions of Article 449 of the Civil Code will apply by analogy. He is even liable for damages (Rabuya, 2008).

Rights of owners over the thing in adjunction OWNER OF THE PRINCIPAL Good Faith 1. Acquire accessory and pay owner of the accessory for its value; or 2. Demand separation provided the thing suffers no injury.

OWNER OF THE ACCESSORY Good Faith 1. Receive payment for value of accessory; or 2. GR:Demand separation provided the thing suffers no injury. XPN: If accessory is more precious than principal, he may demand separation w/ or w/o injury to the thing. Bad Faith Lose accessory and pay damages.

Good Faith Acquire accessory w/o paying the owner of accessory and entitled to damages. Bad Faith Good Faith 1. Pay value of accessory and pay damages; OR 1. Receive payment and damages; or 2. Have the things separated, even though there is injury to 2. Have accessory separated w/ or w/o injury to principal and the principal and pay damages. receive damages. Bad Faith Bad Faith Same as though both acted in good faith. Rules regarding mixtures 1st  Owner

2nd Owner By Will of Both Owners or by Accident

Good Faith

Good Faith

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CIVIL LAW materials.

the new thing is more valuable than materials for scientific or artistic reasons.

CO-OWNERSHIP General rights of each co-owner as to the thing owned in common 1.

To use the thing according to the purpose intended provided that: a. It is w/o prejudice to the interest of the co-ownership; and b. w/o preventing the use of other co-owners (Art. 486).

2.

Q: What are the requisites for quieting of title?

To share in the benefits in proportion to his interest, provided the charges are borne in the same proportion (Art. 485).

 A: 1.

NOTE: A contrary stipulation is void. Hence, benefits cannot be stipulated upon by the co-owners.

2. Receive payment for the value of materials and damages.

QUIETING OF TITLE TO OR INTEREST IN AND REMOVAL OR PREVENTION OF CLOUD OVER TITLE OT INTEREST IN REAL PROPERTY

2. 3.

4.

Plaintiff must have a legal or equitable title to, or interest in the real property which is the subject matter of the action; There must be cloud in such title; Such cloud must be due to some a. Instrument; b. Record; c. Claim; d. Encumbrance; or e. Proceeding which is apparently valid but is in truth invalid, ineffective, voidable or unenforceable, and is prejudicial to the plaintiff’s title; and Plaintiff must return to the defendant all benefits he may have a. received from the latter; or reimburse him for expenses that may have redounded b. to his benefit.

3.

Each co-owner may bring an action for ejectment (Art. 487).

NOTE: Action for ejectment covers; forcible entry, unlawful detainer, accion publiciana, quieting of title, accion reivindicatoria, replevin. 4. To compel other co-owners to contribute to expenses for preservation of the thing (Art. 488) 5. To oppose to any act of alteration (Art. 491) even if beneficial to the co-owners 6. To protect against acts of majority which are prejudicial to the minority (Art. 492, (3)) 7. To exercise legal redemption 8. To ask for partition (Art. 494) 9. Right to exempt himself from obligation of paying necessary expenses and taxes by renouncing his share in

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 Q: A, B and C are the co-owners in equal shares of a residential house and lot. During their co-ownership, the following acts were respectively done by the co- owners: 1.

2. 3. 4. 5.

 A undertook the repair of the foundation of the house, then tilting to one side, to prevent the house from collapsing. B and C mortgaged the house and lot to secure a loan. B engaged a contractor to build a concrete fence all around the lot. C built a beautiful grotto in the garden.  A and C sold the land to to X for a very very good price. price.

a) Is A’s sole decision to repair the foundation of the house binding on B and C? May A require B and C to contribute their 2/3 share of the expense? Reasons.  b) What is the legal effect f the mortgage contract executed by B and C? Reasons. c) Is B’s sole decision to build the fence binding upon A and C? May B require A and C tocontribute their 2/3 share of the expense?Reasons. d) Is C’s sole decision to build the grotto binding upon A and B? May C require A and B to contribute their 2/3 share of the expense? Reasons. e) What are the legal effects of the contract of sale executed by A, C and X? Reasons.  A:

a)

Yes. A’s sole decision to repair the foundation is binding upon B and C. B and C must contribute 2/3 of the expense. Each co-owner has the right

accepting the value of his interest as equivalent to his share in the taxes and expenses of preservation. --Q: Ambrosio died, leaving his three daughters, Belen, Rosario and Sylvia a hacienda which was mortgaged to the Philippine National Bank due to the failure of the daughters to pay the bank, the latter foreclosed the mortgage and the hacienda was sold to it as the highest bidder. Six months later, Sylvia won the grand prize at the lotto and used part of it to redeem the hacienda from the bank. Thereafter, she took possession of the hacienda and refused to share its fruits with her sisters, contending that it was owned exclusively by her, having bought it from the bank with her own money. Is she correct or not? (1993, 2000 BAR)

 A: Sylvia is not correct. The 3 daughters are the co-owners of the hacienda being the only heirs of Ambrosio. When the property was foreclosed, the right of redemption belongs also to the 3 daughters. When Sylvia redeemed the entire property before the lapse of the redemption period, she also exercised the right of redemption of her co-owners on their behalf. As such, she is holding the shares of her two sisters in the property and all the fruits corresponding thereto, in trust for them. Redemption by one co-owner inures to the benefit of all (Adille v. CA, G.R. No. L-44546, January 29, 1988). Sylvia, however, is entitled to be reimbursed the shares of her two sisters in the redemption price. POSSESSION --Q: Distinguish between possession and occupation as these terms are commonly used in Book II and Book III of the Civil Code. (1997, 2007 BAR)

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CIVIL LAW removal

(Ornamental Expenses) Shall not be refunded but he Shall not be refunded but he has a limited right of removal, has a limited right of removal, i.e. he may remove if the i.e. he may remove if the principal thing suffers no principal thing suffers no injury thereby, and if the injury thereby, and if the lawful possessor does not lawful possessor does not prefer to refund the amount prefer to retain them by expended paying its value at the time he enters into possession  As to liability in case of deterioration or loss No liability, unless due to his Always liable fraudulent act or negligence Possession cannot be recognized in two different personalities except in case of co-possession when there is no conflict.

Criteria in case there is a dispute of possession of two or more persons 1.

Present/actual possessor shall be preferred

3.

proper authority and the necessary proof to bring the action (Art. 578). In a usufruct of part of a common property, to exercise all the rights pertaining to the co-owner with respect to the administration and collection of fruits or interests.

Exercise acts of ownership by a usufructuary GR:  A usufructuary cannot exercise acts of ownership such as alienation or conveyance. XPNs: When what is to be alienated or conveyed is a:   (CIA) 1. Consumable property 2. Property Intended for sale; 3. Property which has been Appraised when delivered. NOTE:  If it has not yet been appraised or if it is not a consumable: return the same quality ( mutuum) Rights of the usufructuary as to advances and damages The right to be: Reimbursed for indispensable extraordinary repairs made 1. by him in the amount equal to the increase in value of the

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 5.

Non-user : 10 years Reckoning point:

Discontinuous – counted from the day they ceased to be used. b. Continuous – counted from the day an act adverse to the exercise takes place. 6. Expiration of the term or fulfilment of the resolutory condition 7. Bad Condition – when either or both estates fall into such a condition that the easement could not be used but this is a mere suspension of easement since possibility of use revives the easement. 8. Resolution of the right of GRantor to create the easement (as when the vendor a retro redeems the land) 9. Expropriation of the servient estate 10. Waiver by the dominant owner gathered from positive acts (NCC, Art. 631). --An easement of right-of-way may be demanded by the owner of an immovable or by any person who by virtue of a real right a.

inter vivos (Art. 746) ; whereas in case of donation mortis causa, causa, acceptance is made after donor’s death because they partake of a will (Art. 728) Reversion in donation It is a condition established in the deed of donation which has for its effect the restoration or return of the property donated to the donor or his estate or in favor of other persons who must be living at the time of the donation for any cause or circumstances (Art. 757).If the reversion is in favor of other persons who are not all living at the time of the donation, the reversion stipulated shall be void, but the donation shall remain valid.

Limitations imposed by law in making donations inter vivos 1. Donor must reserve sufficient means for his support and for his relatives who are entitled to be supported by him (Art. 750). 2. Donation cannot comprehend future property except donations between future husband and wife (See Art. 84

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CIVIL LAW extended spiritual aid to him during the same period; (Art. 1027) 9. To a public Officer or his/her spouse, descendants or ascendants in consideration of his/her office; (Art. 739) 10. To a Physician, surgeon, nurse, health officer or druggist who took care of the donor during his/her last illness; (Art. 1027)

NOTE: Any person who is forbidden from receiving any donation under Art. 739 cannot be named beneficiary of a life insurance policy by the person who cannot make any donation to him (Art. 2012).

2.

Extinctive prescription or limitation of actions- loss of property rights or actions through the possession by another of a thing for the period provided by law or failure to bring the necessary action to enforce one’s right with in the period fixed by law. Rights and actions are lost by the lapse of time (NCC, Arts. 1106 and 1139). NOTE: It is also referred to as prescription of actions, statute of limitations, and statute of repose.

Instances when prescription is not allowed NO PRESCRIPTION  APPLICABLE  APPLICABL E When it is possessed through a crime such as robbery, theft, or estafa.

Grounds for revocation or reduction 1.

Under Art. 760 a. Birth of a donor’s child or children (legitimate, legitimated, or illegitimate) after the donation, even though born after his death. b. Appearance of a donor’s child who is missing and thought to be dead by the donor. c. Subsequent adoption by the donor of a minor child.

By Offender

NOTE:The person who cannot invoke the right of prescription is the offender or person who committed the crime or offense,

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 property is taken by the Government for public use without first acquiring title thereto either through expropriation or negotiated sale , the owner’s acti on to recover the land or the value thereof does not prescribe.

Prescription or limitation of actions  ACTIONS Recover Movables

Recover Immovables

PRESCRIPTIVE PERIOD PRESCRIPTIVE PERIOD 8 years (good faith)or 4 years (bad faith) from the time the possession is lost (NCC, Art. 1140, Pineda Succession and Prescription, p. 666, 2009) 30 years (Recover ownership) (NCC, Art. 1141)

 Appearance of a child believed to be dead

4 years

Non-compliance with any condition imposed

4 years

 Act of inGRatitude

1 year

provided a decree of adoption is issued thereafter From the date an information was received as to the existence or survival of the child believed to be dead From the noncompliance with the condition From the time the donor had learned of the donee’s act of inGRatitude, provided it was possible for him to file an action.

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CIVIL LAW What are the characteristics of a legal obligation? The following are the characteristics of a legal obligation: 1. Does not need the consent of the obligor; 2. Must be expressly set forth in the law creating it and not merely presumed; and 3. In order that the law may be a source of obligation, it should be the creator of the obligation itself (NCC, Art. 1158).

Q: What amount of proof or evidence is required in order to recover on civil liability arising from a crime?  A: IT DEPENDS. If the claim is made in a criminal case, then the proof of the facts giving rise to the liability must be beyond reasonbale doubt; this deGRee of proof is necessary for the conviction of the accused, and unless there is a judgment of conviction, there can be no pronouncement of civil liability in the criminal case. But if the claim for indemnity is made in a civil case, a mere preponderance of evidence is necessary.

2. Obligation Ex Contractu What are the requisites of a contractual obligation? The following are the requisites of a contractual obligation: 1. It must contain all the essential requisites of a contract (NCC, Art. 1318). 2. It must not be contrary to law, morals, good customs, public order, and public policy (NCC, Art. 1306).

Q: What is the effect of the acquittal of the accused in a criminal case to his civil liability arising from said crime of which he is charged?

What rules govern the obligations arising from contracts?

 A: When the accused in a criminal prosecution is acquitted on the Ground that his guilt has not been proven beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only preponderance of evidence (NCC, Art. 29).

GR:These obligations arising from contracts shall be governed

But where the judgment of acquittal contained a declaration

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 3.

4.

A judicial or extra-judicial demand made by the creditor upon the debtor to fulfill, perform or comply with his obligation; and Failure of the debtor to comply with such demand.

2. Mora Solvendi Solvendi What are the requisites of mora solvendi? The following are its requisites:

Time of delay 

Default or delay begins from extrajudicial or judicial demand – mere expiration of the period fixed is not enough in order that debtor may incur delay.

Delay by the other party begins from the moment one of the parties fulfills his obligation.

a. The obligation or the

When different dates for

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CIVIL LAW What are the remedies of the defrauded party?

2.

He may avail of the following remedies: 1. Specific performance (NCC, Art. 1233) 2. Resolution of the contract (NCC, Art. 1191) 3. Damages, in either case

The imposition of an unconscionable rate of interest on a money debt, even if knowingly and voluntarily assumed, is immoral and unjust. It is tantamount to a repugnant spoliation and an iniquitous deprivation of property, repulsive to the common sense of man. (Spouses Castro v Tan, G.R. No. 168940, 24 November 2009)

What are the subsidiary remedies?

Compensatory Interest - interest as damages

KINDS OF OBLIGATION OBLIGATIONS S 1.

Accion subrogatoria- case against the debtor’s debtor

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 XPN:  When it appears from the tenor of the period or other circumstances that it was established for the benefit of one of the parties (NCC, Art. 1196).

liability to debtor

What are the effects of the term/period? 1.

When it is for the benefit of the creditor – Creditor may demand the performance of the obligation at any time but the debtor cannot compel him to accept payment before the periode expires ( e.g. “on demand”)

Liability of the debtor

When substitution has been made and communicated to the creditor, the obligor is liable for the loss of the

The creditor shall have the right of indemnity for damages when, through the fault of the debtor, all the things which are alternatively the object of the

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CIVIL LAW damages

4.Joint and Solidary Obligations What are the consequences of a joint obligation? The following are its consequences: 1. Each debtor is liable only for a proportionate part of the entire debt 2. Each creditor, if there are several, is entitled only to a

Note: The enforcement of a penalty is not an alternative obligation which can be chosen by the debtor. A contract of lease may provide for a forfeiture clause-a provision that allows the lessor to forfeit in its favor advance rentals and deposits of the lessee deserts or vacates the premises.

EXTINGUISHMENT OF OBLIGATIONS

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UST LAW PRE-WEEK LAW PRE-WEEK NOTES 2018 a.

Can recover entire amount paid (absolute reimbursement) Can be subrogated to all rights of the creditor .

to accept the same or is not in a position to accept it due to certain reasons or circumstances. It generally requires a prior tender of payment (Pineda, 2009).

If the payment was made with without knowledge or against the will of the debtor – can recover only insofar as payment has been beneficial to the debtor (right of conditional reimbursement)

--Q: Chan, owner of a three story commercial building, entered into a lease contract with Philippine National Bank for five years. Upon expiration of the lease, PNB continued to lease the property on a monthly basis.. Chan executed a Deed of Assignment over the rental payments in favor of

b. 2.

Q:To whom may payment be made?

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